Wallace v. W. B. Folmar & Sons

110 So. 402 | Ala. | 1926

Lead Opinion

An appeal must be taken within six months from the date of the judgment, and, if taken later, the appellate court does not acquire jurisdiction to entertain same. Section 6127 of the Code of 1923; Rowell v. State, 166 Ala. 44, 52 So. 310; Dennis v. Currie, 142 Ala. 637, 38 So. 802. The judgment in this case was rendered February 3, 1925, and the appeal bond was not filed until November 9, 1925, more than six months thereafter. True, the bond purports to be dated as of April 4th, but it did not become effective as for the purpose of taking the appeal until filed with the clerk.

The appeal is dismissed.

Appeal dismissed.

ANDERSON, C. J., and SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.

On Rehearing.





Addendum

In dismissing this appeal, it was not at the time brought to the attention of the court that there was a motion for a new trial made and that the judgment on same was rendered less than six months before the appeal was taken. This suspended the finality of the judgment as for the purpose of an appeal, until the motion for a new trial was acted upon. Childers v. Samoset Mills, 213 Ala, 292, 104 So. 641; Shipp v. Shelton, 193 Ala. 658,69 So. 102. The motion for a rehearing is granted, and the judgment dismissing the appeal is set aside.

On the Merits.
There was no error in permitting appellees to prove that they had remitted the premiums for which the note was given to the Franklin Company and in showing the receipt for same, as the note was given for the premium and there was a plea of a failure of consideration.

There was no error in permitting the introduction of the application filled in in pencil by Rodgers at the time of the transaction with the appellant. It was not a mere memorandum to refresh the memory, but was, in a sense, a part of the res gestæ. While not signed by the defendant, Rodgers testified that it was filled in with pencil in his presence, and appellant signed a blank form to be filled in from the information contained in the one filled in with pencil. The appellant denied signing an application in blank, or that one was filled out with pencil, and claimed that the one he signed was then and there filled in in ink before he signed it. Therefore the one claimed to have been then filled in by Rodgers was evidence for the jury as shedding light on the transaction, and as contradictory of the appellant and corroborative of Rodgers.

The judgment of the circuit court is affirmed.

Motion for rehearing granted, judgment of dismissal set aside, and case affirmed

Affirmed.